Was a collectively agreed term indicating that permanent posts would not be advertised when an employee was designated surplus apt for incorporation into an individual employment contract?
No, held the EAT in Hamilton v Fife Council.
The Claimant, a teacher, was told her department had surplus staff and she was liable to be transferred to another school under a collective agreement. The school then advertised a full-time position in her department. The collective agreement indicated that where a teacher was designated surplus, a permanent post would not be advertised. The Claimant resigned, claiming constructive unfair dismissal on the basis that the school was in repudiatory breach of this term. The tribunal dismissed the claim and the Claimant appealed.
The EAT dismissed the appeal. Whilst collectively agreed terms may be incorporated into individual employment contracts, tribunals must consider whether such terms are apt for incorporation. Terms that are truly collective in nature cannot generate enforceable individual rights. The term's vagueness and lack of specification as to when it could be invoked by employees demonstrated that it was not intended to confer individual rights, the term was only a broad statement of agreement about what was expected to happen in a surplus situation. Therefore, there was no breach of contract.
Thanks to Joshua Cainer of Outer Temple Chambers for preparing this case summary.
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